United States: West Virginia's New Drug & Alcohol Law: What You Need to Know for Your Testing Programs

Last Updated: June 7 2017
Article by Karen L. Vossler

West Virginia employers that may have hesitated in the past to implement and enforce robust drug and alcohol testing policies may now do so without fear of running afoul of prior state court decisions limiting employers' flexibility to test thanks to the newly enacted West Virginia Safer Workplace Act. Through the act, which will go into effect on July 7, 2017, the state legislature has trimmed expansive privacy rights and cleared the way for certain employer actions relating to drug and alcohol testing.

Protections From and Limitations of Liability Under the Act

While it does not mandate that employers implement a drug and alcohol testing policy and/or program, the act does establish the legality of testing prospective and current employees and provides attractive liability protections and limitations for employers that conduct testing in compliance with the act's provisions. For example, employers that establish a policy and testing program that complies with the act's accuracy and fairness safeguards will be protected from claims arising from (a) actions the employer takes based on the results of a confirmed positive drug or alcohol test or an individual's refusal to submit to a test; (b) failure to test for drugs or alcohol or for a specific drug or other controlled substance; (c) failure to test for, or if tested for, failure to detect, any specific drug or other substance, any medical condition, or any mental, emotional, or psychological disorder or condition; or (d) the termination or suspension of any substance abuse prevention or testing program or policy.

In addition, establishing and adhering to a policy in compliance with the act limits defamation, libel, slander, and damage to reputation causes of action against employers; bars liability for actions taken as a result of false negative tests (e.g., negligent retention claims); and limits liability for actions taken in reliance on a false positive tests in circumstances in which the claimant could show that the employer had actual knowledge that the result was false and ignored the true test result in disregard for the truth and/or with the willful intent to deceive or be deceived. 

Other benefits of implementing a compliant drug and alcohol testing program include limitations on unemployment insurance and workers' compensation claims where the employer's written policy puts employees on notice that it is a condition of employment for an employee to refrain from reporting to work or working with the presence of drugs or alcohol in his or her body. In order to qualify for the limitations on unemployment and workers' compensation liability, the written policy must also state that if an injured employee refuses to submit to a test, the employee forfeits eligibility for unemployment compensation benefits, and if injured, for indemnity benefits under the state's workers' compensation laws.

Requirement of a Written Policy

To be compliant with the act, an employer must have a written policy that is distributed to every current employee and made available to prospective employees to review. The act sets forth a broad array of permissible purposes for drug and alcohol testing current and prospective employees, defines safety sensitive employees, and provides for a number of legally permissible disciplinary and rehabilitative actions that may be taken as a result of a confirmed positive test or a refusal to submit to a test. Employers may want to address these matters in their written policies.

The act contains no requirement to provide counseling, employee assistance programs, rehabilitation, or any other drug abuse treatment programs. Employers that do so, however, must provide employees with information regarding those programs as requested or otherwise appropriate. As a best practice, this information can also be included in the employer's written policy.

Testing Requirements Under the New Law

To ensure fairness and reliability, the act sets forth various requirements for testing procedures and the treatment of drug testing samples. Employers are required, among other things, to pay for testing (which must be done during, right before, or directly following a regular work period) and to compensate employees for time spent submitting to tests. If testing is done away from the worksite, the act requires employers to transport or pay for reasonable transportation to and from the testing site. 

Individuals also have certain rights under the testing procedures outlined in the act. For example, all positive tests must be confirmed by a second test. In addition, current and prospective employees have the right to voluntarily provide information relevant to the test, like the use of prescription drugs, which can be accomplished by setting up procedures for review of the test by a qualified medical professional. Finally, individuals who want to challenge the results of an initial sample test have the right, at their own expense, to have a split sample tested by another lab.

Continued Adherence to Other Applicable Drug and Alcohol Laws

Employers are still obligated to adhere to additional requirements under other state and federal drug testing statutes to which they are subject. For example, an employer that has employees subject to federal Department of Transportation's drug and alcohol testing requirements must still adhere to those requirements.

Confidentiality Protections

Finally, employers must treat communications concerning drug and alcohol test results as confidential. Such information is expressly prohibited from being used or received in evidence, subject to discovery processes in litigation, or disclosed in any public or private proceeding, with the exception of actions against the employer under the act itself.

On balance, the act provides West Virginia employers an important tool in advancing safety and ensuring quality in the workplace. Employers may want to carefully review the requirements of the act in crafting a written policy and implementing testing procedures so as to ensure receipt of the maximum protections provided under the new law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Ogletree, Deakins, Nash, Smoak & Stewart
Fisher Phillips LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Ogletree, Deakins, Nash, Smoak & Stewart
Fisher Phillips LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions